Enforcement and Set-Aside

A Dutch court has ordered further briefing on an application to enforce a US$530 million Energy Charter Treaty award against Kazakhstan so that the state can present more evidence to support its claim that the award was obtained fraudulently.

In the wake of a judgment of the Russian Supreme Court holding a standard ICC arbitration clause to be unenforceable under Russian law, the ICC International Court of Arbitration has sought clarification of the reasoning behind the unexpected decision.

A US defence contractor has asked a New York court for leave to begin attaching Greece’s US assets to satisfy a €48 million ICC award relating to a project commissioned for the 2004 Olympic Games that has been dogged by allegations of corruption.

After its request for a preliminary ruling from the Court of Justice of the European Union led to the notorious Achmea decision, Germany's top court has followed that judgment’s reasoning and set aside an award in favour of the Dutch insurer based on an intra-EU investment treaty.

A Liechtenstein company has failed in its latest bid to enforce a US$400 million award against the Czech Republic in the US courts, as its founder pursues a related investment treaty claim worth US$2.5 billion.

The Commercial Court in London has partially set aside an ICC award in a US$75 million banking dispute because of “serious irregularity” while declining to remove the sole arbitrator – who is described as “a very senior English QC, well known and highly regarded in the world of international commercial arbitration”.

Enforcement is the “single most important challenge” facing arbitration today, said Emmanuel Gaillard, at the opening of the latest conference of the International Arbitration Institute, which focused on enforcement against states. Margaret Clare Ryan, senior associate at Shearman & Sterling, reports on the two-day conference that covered procedural and strategic considerations, the piercing of the corporate veil and laws on sovereign immunity in several jurisdictions.

A conference in Amsterdam looked at strategies that can be adopted at the outset of a dispute where enforcement of foreign arbitral awards is likely to be an issue and at current challenges and controversies related to enforcement. Mathieu Raas of Baker McKenzie in Amsterdam reports.

The Malaysian government is to challenge a US$5.8 billion settlement negotiated under former prime minister Najib Razak that ended an LCIA arbitration between the country’s scandal-wracked sovereign wealth fund 1MDB and an Abu Dhabi government-owned entity.